No. 05-466 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2006 MT 207N 

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v. 

JAMES A. BUSH, 

 Defendant and Appellant. 

APPEAL FROM: The District Court of the Seventeenth Judicial District, 

In and For the County of Valley, Cause No. DC 04-010, 

Honorable John C. McKeon, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

 Peter L. Helland, Helland Law Firm PLLC, Glasgow, Montana 

For Respondent: 

 Honorable Mike McGrath, Attorney General; Jim Wheelis, 

 Assistant Attorney General, Helena, Montana 

 Kenneth L. Oster, County Attorney, Glasgow, Montana 

 Submitted on Briefs: July 19, 2006 

 Decided: August 29, 2006 

Filed: 

__________________________________________ 

Clerk
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Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal 

Operating Rules, as amended in 2003, the following memorandum decision shall not be 

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme 

Court and its case title, Supreme Court cause number and disposition shall be included in 

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and 

Montana Reports. 

¶2 On March 25, 2004, a confidential informant contacted Sergeant Dave Watson and 

Officer Rod Dees of the Glasgow Police Department and told them that he had just come 

from a house where the defendant, James A. Bush, was in the process of making 

methamphetamine. The informant told officers that he had been invited by Bush to 

return later to Bush’s home to buy the drug. Before the informant returned to Bush’s 

residence to complete the drug sale, law enforcement wired the informant with a hidden 

audio/video recording device. After the informant’s video showed Bush making 

methamphetamine in his bathroom, law enforcement applied for and received a search 

warrant for Bush’s residence. Execution of the search warrant led to the discovery of 

methamphetamine production in Bush’s home. 

¶3 The State charged Bush with criminal production or manufacture of dangerous 

drugs, criminal possession with intent to distribute, criminal distribution of dangerous 

drugs, and criminal possession of dangerous drugs. Bush pled not guilty and 

subsequently moved to suppress evidence seized pursuant to the search warrant, 
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contending that his constitutional rights were violated because the informant entered his 

residence without first obtaining consent for his entry. The District Court denied Bush’s 

motion to suppress, noting that while the evidence on the matter of consent conflicted, the 

more credible evidence showed that Bush met the informant near the door and directed 

him toward the area of the residence where methamphetamine was being produced. Bush 

subsequently pled guilty to criminal production or manufacture of dangerous drugs and 

criminal possession with intent to distribute, reserving the right to appeal the District 

Court’s ruling on his motion to suppress. 

¶4 On appeal, Bush contends that the District Court misapprehended the evidence 

regarding consent to enter Bush’s home given that the audio/video recording does not 

indicate that Bush told the informant to “come in.” Bush argues that if he had invited the 

informant to enter his home, such an invitation should have been audible on the 

recording. Since the words “come in” are not audible, Bush insists that the District Court 

made an erroneous finding that the informant had consent to enter Bush’s residence. 

¶5 In denying the motion to suppress, the District Court provided the following 

reasoning: 

 The actions of the Defendant are consistent with consent for [the 

informant] to enter the residence. The door to Defendant’s residence [was] 

left ajar. Previously, Defendant told [the informant] to come back “a few 

hours later” to obtain methamphetamine. When [the informant] return[ed], 

Defendant [did] not tell him to leave. Rather, the more credible evidence 

shows that Defendant met [the informant] near the door and direct[ed] him 

to the bedroom of the residence, the area of the house where 

methamphetamine [was] being produced. 
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 The failure of the recording to reflect the “come in” remark does not 

mean this invitation to enter was never given. Rather, it can be attributed to 

the location of Defendant at the time he made that inviting remark and the 

limitations of the hidden recording device. 

¶6 It is not this Court’s function on appeal to reweigh conflicting evidence or 

substitute our evaluation of the evidence for that of the district court. In cases in which 

the district court must resolve conflicting testimony, if substantial evidence supports the 

district court’s factual findings, then such findings are not clearly erroneous. We defer to 

the district court in cases in which conflicting testimony is presented because we 

recognize that the court had the benefit of observing the demeanor of witnesses and 

rendering a determination of the credibility of those witnesses. State v. Wetzel, 2005 MT 

154, ¶ 11, 327 Mont. 413, ¶ 11, 114 P.3d 269, ¶ 11. 

¶7 It is appropriate to decide this case pursuant to our Order of February 11, 2003, 

amending Section 1.3 of our 1996 Internal Operating Rules and providing for 

memorandum opinions. It is manifest on the face of the briefs and the record before us 

that the appeal is without merit because the findings of fact are supported by substantial 

evidence and there was clearly no abuse of discretion by the District Court. 

¶8 We affirm the judgment of the District Court. 

 /S/ W. WILLIAM LEAPHART 
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We concur: 

/S/ JIM RICE 

/S/ PATRICIA COTTER 

/S/ JOHN WARNER 

/S/ JAMES C. NELSON